Latest Cases

European Union – Freedom of movement. The Court of Justice of the European Union ruled that both art 35 of Directive 2004/38 and art 1 of Protocol No 20 had to be interpreted as not permitting a member state to require, in pursuit of an objective of general prevention, family members of a Union citizen who were not nationals of a member state and who held a valid residence card, issued under art 10 of Directive 2004/38 by the authorities of another member state, to be in possession, pursuant to national law, of an entry permit, such as the European Economic Area family permit, in order to be able to enter its territory. 

Police – Complaint against police. The proceedings concerned two linked applications for judicial review of the lawfulness of guidance issued by the College of Policing as part of its 'Armed Policing Authorised Professional Practice' manual (2014). The Court of Appeal, Civil Division, addressing the applications as a substantive first instance hearing, held that, while there was a risk of collusion prior to an investigation under art 2 of the European Convention on Human Rights between police officers who had either used force or witnessed its use, in the light of the safeguards that the guidance provided, and bearing in mind that the adequacy of an investigation for the purposes of art 2 would have to be assessed by reference to all the features of that investigation, the risk of breach of art 2 to which the guidance itself gave rise was not an unacceptable risk such as justified a finding that the guidance itself was unlawful. 

Immigration – Detention. The claimant Afghani national issued judicial review proceedings, seeking a declaration that his immigration detention had been unlawful and damages for false imprisonment. The Administrative Court held that, on the proper construction of para 16(2) of Sch 2 to the Immigration Act 1971, an erroneous view of the law, as opposed to an erroneous view of the facts, could not amount to 'reasonable grounds for suspecting' that a person was liable to removal. Accordingly, the claimant's detention had been unlawful. However, it had not been unlawful on the principles in R v Governor of Durham Prison, ex p Singh ([1984] 1 All ER 983). 

Family proceedings – Orders in family proceedings. The proceedings concerned the father's appeal against findings of fact made by the judge, which were potentially relevant to certain applications before him. In broad terms, the judge found that the incidents relied upon against the father by the mother and her daughter from a previous relationship, M, had occurred as alleged. The Court of Appeal, Civil Division, held, inter alia, that the judge had been aware that concerns had been expressed about M's behaviour. He would have factored that into his assessment of her evidence, and had had the advantage of having seen and heard her give evidence and be tested upon it. In those circumstances, it was not possible to go behind his assessment of M as a witness. 

Immigration – Detention. The claimant national of the Democratic Republic of the Congo issued proceedings, alleging that his detention had been unlawful. The Administrative Court, in dismissing the application, held that the risk of re offending and absconding had justified the claimant's detention whilst the Secretary of State had awaited judgment in R (on the application of P) (DRC) v Secretary of State for the Home Department and another case ([2013] All ER (D) 181 (Dec)). Further, on new evidence, there had been a realistic prospect of removing the claimant after the Secretary of State had abandoned her appeal against that decision. 

Immigration – Asylum seeker. The claimant Albanian national sought judicial review of the defendant Secretary of State's decisions to certify his human rights claim as clearly unfounded and to detain him pending removal. The Administrative Court, in dismissing the application, held that, despite interference with the claimant's family life, the Secretary of State's decision to certify that the claimant's human rights claim had been clearly unfounded had been rational and lawful. Further, it had been lawful for detention to be maintained, in particular, when family proceedings had been contemplated. 

Mental health – Persons who lack capacity. The issues before the Court of Protection concerned the future of a 41-year-old Bangladeshi woman, TB. The court held that it was in TB's best interests that she should not return to live with her husband at the matrimonial home and, on the articulated test of 'relevant information' under s 3(1)(a) of the Mental Capacity Act 2005, she did not have the capacity to make the decision to have sex. As TB's care regime did involve detention under art 5 of the European Convention on Human Rights, there had to be at least six-monthly reviews by the court. 

Negligence – Damage. The deceased was admitted to the accident and emergency department of the defendant hospital, she died and her husband, the claimant brought a claim on behalf of her estate. The defendant admitted some of the breaches of duty pleaded but maintained that the deceased would have died even if there had been earlier diagnosis and she had received reasonably competent treatment within the time available. The Queen's Bench Division held that had the deceased been treated non-negligently during and following her arrival at the hospital, she would probably have survived. 

Immigration – Leave to remain. The claimant Turkish nationals sought judicial review of the defendant Secretary of State's decision to grant them three years' discretionary leave to remain in the United Kingdom, rather than indefinite leave to remain. The Administrative Court, in dismissing the application, held that the Secretary of State's failure to act in accordance with her promise to the claimant's Member of Parliament that she would treat the case as a priority within the legacy programme had not led to historical injustice. There could be no illegality in denying an entitlement to a decision any earlier, as no such entitlement had existed. 

Child – Protection. The claimant convicted sex offender sought judicial review of the legality of arrangements made by the police for the retention and disclosure of information and data relating to him. The Administrative Court, in dismissing the application, held that the claimant's rights under art 8 of the European Convention on Human Rights were engaged, but the schemes were in accordance with the law because they were not arbitrary or disproportionate and could be justified. Further, the schemes gave full effect to X (South Yorkshire) v Secretary of State for the Home Department ([2012] All ER (D) 232 (Oct)).